Raup v. Vail Summit Resorts, Inc.

Filing 43

ORDER ON DEFENDANT'S MOTION TO AMEND CERTAIN CIVIL SCHEDULING ORDER DEADLINES AND REQUEST FOR EXPEDITED RULING by Magistrate Judge Nina Y. Wang on 1/15/16. Plaintiff's Motion to Amend Certain Civil Scheduling Order Deadlines and Request for Expedited Ruling 40 is GRANTED IN PART and DENIED IN PART; and The deadline for fact discovery is extended to February 29, 2016 and the deadline for Rule 26(a)(2) expert disclosures is extended to March 10, 2016. All other deadlines remain as previously set. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00641-WYD-NYW
CAROLYN S. RAUP,
Plaintiff,
v.
VAIL SUMMIT RESORTS, INC.,
Defendant.

ORDER ON DEFENDANT’S MOTION TO AMEND CERTAIN CIVIL SCHEDULING
ORDER DEADLINES AND REQUEST FOR EXPEDITED RULING
Magistrate Judge Nina Y. Wang
This matter is before the court on Defendant’s Motion to Amend Certain Civil
Scheduling Order Deadlines and Request for Expedited Ruling (the “Motion”) [#40] filed on
January 12, 2016, and referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b), by the Order of Reference dated June 12, 2015 [#18] and the memorandum dated
January 13, 2016 [#41]. The court has reviewed the Parties’ briefing and the applicable law. For
the reasons set forth herein, this court GRANTS IN PART and DENIES IN PART the Motion.
BACKGROUND
This case arises from injuries sustained by Plaintiff Carolyn S. Raup (“Plaintiff” or “Ms.
Raup”) while disembarking a chair lift at Breckenridge Ski Resort on or about June 25, 2013.
[#5]. In her Amended Complaint, Ms. Raup alleges that she loaded onto a Breckenridge chair
lift with the intention of riding to the top and back down to enjoy the scenery. [Id. at ¶¶ 14-15].

At the top, however, Ms. Raup avers that a lift operator unexpectedly directed Ms. Raup and her
co-passengers to lift the bar and unload suddenly, causing Ms. Raup to fall, be hit by the chair
lift, and suffer serious injuries, including a left femur fracture, left tibial plateau fracture, and left
ankle fracture dislocation. [Id. at ¶¶ 17-22]. Ms. Raup further alleges that after her release from
the hospital, she had to undergo extensive rehabilitation, which disrupted her ability to pursue
her normal activities. [Id. at ¶ 23]. In her Amended Complaint, Ms. Raup asserts two claims
against Defendant Vail Summit Resorts, Inc. (“Defendant” or “Vail Resorts”): (1) violation of
Landowner’s Liability Statute, Colo. Rev. Stat. § 13-21-115; and (2) negligence, including
negligence per se.
Defendant filed the present Motion seeking a 60 day extension of the remaining
discovery and dispositive motions deadlines in this case. [#40]. Defendant represents that it has
been thwarted in its efforts to obtain medical records pertaining to the injuries Ms. Raup alleges
and that an extension of the fact discovery deadline currently set for January 29, 2016 is
necessary to allow it to obtain the needed records prior to deposing Ms. Raup and two other fact
witnesses. [Id. at 2]. Defendant specifically identifies four medical providers from which it still
needs to obtain medical records: Seton Medical Center, North Promed Urgent Care, Austin
Regional Medical Clinic (“Austin Regional”), and CareMinders. [Id. at 4]. It states that it
propounded subpoenas on each of these providers in fall 2015, but that as of the date of its
Motion it was still working with the providers to obtain the records. [Id. at 5].
Defendant does not explain the delay in obtaining the records from Seton Medical Center,
North Promed Urgent Care, or CareMinders. However, Defendant explains that the delay in
obtaining medical records from Austin Regional is due in part to an ownership change at the

2

clinic during the pendency of the subpoena and a resulting need for Plaintiff to execute a new
release form. [Id. at 5]. Defendant also represents that Plaintiff has limited the scope of the
release for records from Austin Regional because of claims of privilege.

According to

Defendant, there will likely be a dispute over the adequacy of Plaintiff’s privilege log for these
records or the application of the privilege (although Defendant represents that counsel for the
Parties are attempting to informally resolve this dispute). [Id. at 6].
Plaintiff filed a response to the Motion on January 14, 2016. [#42]. Plaintiff proposes an
alternative amendment to the scheduling order based on a 30 day extension of the fact discovery
deadline and a 10 day1 extension of the Rule 26(a)(2) opening expert deadline. [Id. at 2].
Plaintiff represents that she is making daily efforts to obtain her records from Austin Regional so
that she can review them for privilege and produce them. [Id. at 1]. She also states that she has
provided many medical releases, and that Defendant has already obtained at least 2,000 pages of
medical records, many of which are duplicative of the records Defendant is now seeking from
the medical providers identified in its Motion. Plaintiff represents that she is not opposed to a
reasonable extension of the discovery schedule and proposes a limited extension that would
leave the Dispositive Motion deadline unchanged.
ANALYSIS
A motion to amend a scheduling order must be made pursuant to Fed. R. Civ. P. 16(b)(4)
on a showing of good cause. Amendments to the scheduling order are granted with the judge’s
consent. Id. To establish good cause, a party must demonstrate that it has been diligent in

1

Plaintiff requests a 10 day extension in the text of its response brief, but provides a date in its
chart showing the proposed amendments that is 9 days after the current deadline. The court will
consider Plaintiff’s request as one for 10 days.
3

attempting to the meet the deadlines, which means it must provide an adequate explanation for
any delay. Lehman Bros. Holdings, Inc. v. Universal Amer. Mortg’g Co., LLC, 300 F.R.D. 678,
681 (D. Colo. 2014).
The court finds that Defendant has established good cause for a limited modification to
the scheduling order. Defendant represents that to-date it has been unable to obtain medical
records that it has been diligently pursuing from at least four of Plaintiff’s medical providers
since this fall, and that these medical records are important to its case. Defendant also represents
that it must obtain these records prior to deposing Ms. Raup and two fact witnesses. Given the
Parties’ representations about the current status of Defendant’s requests for medical records,
including Plaintiff’s representation that she is making daily efforts to obtain her records from
Austin Regional so that she can review them and produce them to Defendant, the court finds that
a 31 day2 extension of the fact discovery deadline and a 10 day extension to the deadline to
disclose affirmative experts are warranted. The court does not foreclose Defendant from seeking
a further extension of the fact discovery deadline to the extent that Defendant can establish good
cause for that extension closer to the discovery cutoff under the amended schedule. However,
the court notes that this court already permitted an extended period of discovery in this matter,
and good cause requires a specific articulation of the diligence of the party seeking the extension
and the justifications for any such extension.
The amended deadlines in this case are as follows:
Event
Fact Discovery Cutoff
Affirmative Rule 26(a)(2) Experts
All Rebuttal Experts
2

Previous Deadline
January 29, 2016
March 1, 2016
March 31, 2016

Amended Deadline
February 29, 2016
March 11, 2016
No change

A 30-day extension, as requested by Plaintiff, would fall on Sunday, February 28.
4

Expert Discovery Cutoff
Dispositive Motion Deadline
Final Pretrial Conference

April 29, 2016
May 27, 2016
July 29, 2016 at 2:00
p.m.

No change
No change
No change

Accordingly, IT IS ORDERED that:
(1)

Plaintiff’s Motion to Amend Certain Civil Scheduling Order Deadlines and

Request for Expedited Ruling [#40] is GRANTED IN PART and DENIED IN PART; and
(2)

The deadline for fact discovery is extended to February 29, 2016 and the deadline

for Rule 26(a)(2) expert disclosures is extended to March 10, 2016. All other deadlines remain
as previously set.

DATED: January 15, 2016

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

5